C A T C H W O R D S
IMMIGRATION - refugees - refusal of refugee status by Refugee Review Tribunal - applicant from China - whether applicant had a well-founded fear of persecution on Convention grounds if returned to China - illegal departure - whether law penalising secret crossing of borders applied only to Chinese nationals - organisers of such secret crossings treated more seriously than passengers, under Chinese law - whether organisers are members of a particular social group - whether such laws and enforcement of them against Chinese nationals could amount to persecution by reason of nationality.
Migration Act 1958 (Cth) ss.31(3), 65, 166LD(2), 478(2)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s.5
Migration Reform Act 1992 (Cth) s.39
Minister for Immigration & Ethnic Affairs v. Respondent A (1995) 130 ALR 48
Morato v. Minister for Immigration, Local Government & Ethnic Affairs (1992) 39 FCR 401
Ram v. Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565
Lo Fu Shuang v. Minister for Immigration & Ethnic Affairs (1995) 134 ALR 73
SU QUN DE v. THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
and REFUGEE REVIEW TRIBUNAL
No. WAG 129 of 1994
CARR J
PERTH
24 APRIL 1996
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 129 of 1994
GENERAL DIVISION )
B E T W E E N : SU QUN DE
Applicant
and
THE MINISTER FOR
IMMIGRATION & ETHNIC
AFFAIRS
First Respondent
and
REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 24 APRIL 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent's costs of the application.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 129 of 1994
GENERAL DIVISION )
B E T W E E N : SU QUN DE
Applicant
and
THE MINISTER FOR
IMMIGRATION & ETHNIC
AFFAIRS
First Respondent
and
REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 24 APRIL 1996
REASONS FOR JUDGMENT
Introduction
This is an application to
review a decision of the Refugee Review Tribunal ("the Tribunal")
that the applicant is not a refugee within the meaning of that term in the Migration Act 1958 (Cth) ("the
Act"). The application purported to
raise grounds of review under s.5 of the Administrative
Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). In essence,
there are two matters in issue. The
first is whether the fact that the applicant may be prosecuted, convicted and
imprisoned as an illegal departee from China constitutes persecution of him by
reason of nationality. The second is
whether as the principal organiser and captain of the boat on which he and
numerous other passengers departed illegally from China, he should be regarded
as a member of a particular social group within the meaning of that expression
in the definition of a refugee in the 1951 Convention Relating to the Status of
Refugees.
Jurisdiction
At the hearing of this application, the question arose whether this Court had jurisdiction. For the reasons which I gave in the matter of Su Wen Jian v. Minister for Immigration & Ethnic Affairs, published today, I consider that the Court has jurisdiction to review the Tribunal's decision for alleged error of law.
The Statutory Framework
Section 39 of the Migration Reform Act provides that
applications for refugee status and for refugee-related entry permits which
were made and not finally determined before 1 September 1994 are to be dealt
with as if they are applications for a protection visa. Section 65 of the Act provides that if an
applicant for a visa satisfies the criteria prescribed by the Act and the
regulations for the grant of that visa, the Minister is to grant that visa but
if the criteria are not satisfied the Minister is to refuse to grant that
visa. The prescribed criteria for the
grant of a protection visa are set out in Part 866 of Schedule 2 of the
Migration Regulations - see s.31(3) of the Act and Regulation 2.03 of those
regulations. One of the criteria for the
grant of a protection visa is that the Minister is
satisfied that the applicant is a person to whom Australia has protection
obligations under the Refugees Convention - see Clause 866.221 of Schedule 2 of
the Regulations. Clause 866.111 defines
"Refugees Convention" as meaning
the
1951 Convention relating to the Status of Refugees as amended by the 1967
Protocol relating to the Status of Refugees.
Article 1A(2) of the Convention as so amended, defines a refugee as any
person who:
"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country..."
Factual Background
The following recital of the factual background of this matter is taken largely from the Tribunal's reasons. Mr Su (to whom I shall occasionally refer as "the applicant") was born in 1949. He is married and their first child was born in 1978. He and his wife had three more children between 1979 and 1987. They had a history of difficulties with family planning authorities, but (in view of the limited grounds upon which the applicant relies) it is not necessary to detail that history in these reasons. The same applies to his imprisonment for a criminal offence in 1980.
In October 1992 the applicant departed China illegally by boat and arrived in Australia during the same month. He made no application for refugee status on that occasion and was returned to China. On his return he was detained for five or six days and fined 600 RMB. He resumed working on boats for various employers.
In early 1993 Mr Su was
asked whether he wished to join a boat which was going to Australia. At first he expressed interest in doing so,
but in fact did not go on board
the boat on the day when it departed.
That boat was caught leaving Beihai and those aboard were arrested. During questioning by the coast guard of
those arrested, the applicant's name was mentioned as someone who knew about
the planned trip. The applicant claimed
before the Tribunal (but the Tribunal rejected the claim) that the coast guard
came to see him and questioned him about his knowledge of the trip and that he
was detained for 85 days, during which time he was questioned about any role
which he played in organising the boat.
In early 1994 Mr Su was asked by others to be the captain of a boat which departed from China to Vietnam. Mr Su, as captain, and the crew sailed the boat to Vietnam. The passengers went overland and joined the boat there. It would seem that the boat departed from Vietnam for its final destination but was stopped by Vietnamese authorities in Vietnamese waters. The authorities confiscated an amount of money in RMB and United States dollars held by passengers. Two or three days later the Vietnamese authorities unofficially despatched the majority of those on the boat back to the Chinese border without the Chinese authorities being informed. The applicant and two others were sent back a day later. The applicant then made his way back to Beihai.
The applicant claimed (but the Tribunal rejected the claim) that upon his return to Beihai he was sought by the coast guard but managed to evade them.
On 29 April 1994 the applicant again left China illegally by boat and travelled to Australia. The applicant was the principal organiser of that boat and was also its captain. Prior to departure, four persons under his control from four different areas collected moneys from passengers recruited from their respective areas. It was the applicant's idea to organise the boat and leave China. The applicant and two others were responsible for the purchase of the boat. The applicant organised the purchase of provisions for the journey, paying for many expenses of the journey out of his own pocket. However, the applicant did not make any profit out of the journey.
The applicant arrived in Australia on 28 May 1994. On 13 June 1994 he applied for refugee status. On 6 July 1994 he was notified that his application had been refused. On 15 July 1994 Mr Su applied to the Tribunal for review of that decision. The Tribunal conducted a hearing on 19 August 1994 and on 4 October 1994 published its decision affirming the decision that a protection visa not be granted to the applicant.
The applicant gave the Tribunal various reasons for leaving China, which I do not propose to recite. The applicant told the Tribunal that if he were to return to China he would be treated harshly under Chinese law as he was the organiser of the journey to Australia and because he had left China a number of times before.
Grounds of Application
Only two grounds were advanced on behalf of the applicant. The first reads as follows:
"The Second Respondent misdirected himself at law by not concluding that the Applicant's membership of a particular social group in view of his organisation of the boat trip directly placed him in fear of persecution upon return to China."
Mr McIntyre, counsel for the applicant, submitted that the relevant law which would be applicable to Mr Su was the following regulation:
"Those who secretly cross national territories (borders) shall be either detained by public security organs for less than 15 days, or fined from 1,000 to 5,000 yuan, or punished with a combination of both. When the circumstances are odious, they shall be punished by a fixed term imprisonment or detention of less than two years. In addition, they shall be fined."
Mr McIntyre submitted that the circumstances of Mr Su's involvement in the organisation and supervision of the journey would be "odious" within the meaning of this regulation and that Mr Su would be punished as an "evil organiser". He submitted that there was a real chance that Mr Su would be held to be a member of a particular social group namely "evil organisers".
"Evil organisers" were described as those people to whom a more serious collection of offences apply. Initially, during oral submission, Mr McIntyre suggested that evil organisers would be persecuted by reason of imputed political opinion. That raised the prospect of an alternative reason for persecution being advanced. However, in reply, Mr McIntyre made it clear that his client's case was not being run on the basis of political opinion in that manner. He was referring to imputed political opinion of "evil organisers" forming part of "... the cohesiveness of their social group".
I propose, for the
purposes of these reasons, to assume that if Mr Su were returned to China then
he would be treated as an "evil organiser" and that any punishment
meted out to him would be serious enough to amount to
"persecution". That leaves the
question whether an "evil organiser" is a "member of a
particular social group" for the purposes of the definition of
"refugee" in the Convention.
In my view the applicant's submission is not made out. These Chinese laws regulate the conduct of individuals. They are laws which deal with what people do, not with what they are. As the Full Court of this Court held in Minister for Immigration v. Respondent A (1995) 130 ALR 48 at p.62:
"Such a law would not create or define a particular social group constituted by those who are affected by it, any more than would laws imposing tax or prescribing punishment for tax evaders."
See also Morato v. Minister for Immigration, Local Government & Ethnic Affairs (1992) 39 FCR 401 and Ram v. Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565 (both being Full Court decisions).
Mr McIntyre contended that Mr Su's history of organising illegal departures by boat gives rise to a likelihood that he will "... be imputed to have the political philosophy of the particular section of the community who support the concept of Chinese nationals leaving the Peoples Republic of China because they have particular views about the politics in China even though in his case the evidence seems to be that that was not manifest" (an extract from counsel's submission on this point).
First, there was no evidence of such political opinion being imputed to organisers. Secondly, the Tribunal, after reviewing the evidence, expressly found to the contrary in the following terms:
"It is apparent from the information quoted above that the Chinese government does not regard illegal movements of people by boat to Australia as having a political motivation and it does not ascribe any political views to such people. This is particularly the case with persons from the applicant's province of Guangxi. The applicant did not depart China illegally because of any political motivation and nor do the Chinese authorities regard that departure as an expression of political disloyalty or defiance."
Alternatively, Mr McIntyre submitted that evil organisers shared a "common immutable characteristic". Having taken part in the organisation of boat trips, so it was put, a person is then cast as an organiser, something which one can no longer change, an immutable characteristic which helps to determine that one is part of a social group. Mr McIntyre cited Hathaway "The Law of Refugees" at p.160 which in turn referred to a decision of the United States Board of Immigration Appeals in the matter of Acosta. Hathaway sets out a lengthy passage from the Board's interim decision in that case. The case is picked up in an article by Savitri Taylor in Vol. 19 No. 2 of 1993 Monash University Law Review ("the Taylor article") entitled "The Meaning of `Social Group': the Federal Court's Failure to Think Beyond Social Significance". The Taylor article refers to the decision of Sanchez-Trujillo v. Immigration and Naturalization Service 801 F.2d 1576, a decision of the Ninth Circuit Court of Appeals in 1986. The author of the Taylor article contrasted the Sanchez-Trujillo decision with Acosta and other decisions which recognised persons with an immutable common characteristic as constituting a social group. The author observed that the view of the Ninth Circuit Court of Appeals has not been adopted by other circuits.
In my view, there is an
inherent logical problem in the applicant's attempt to
distinguish the line of Full Court authorities referred to above, on the basis
of the immutable common characteristic claimed here. The immutable common characteristic only
arises because of what the applicant and other organisers of boat journeys have
done, not with what they are.
Accordingly they fall squarely within the ratio of each of the above
cases. In Lo Fu Shuang v. Minister for Immigration & Ethnic Affairs
(1995) 134 ALR 73, Tamberlin J. applied the decision in Respondent A and held that hepatitis B sufferers were not a
particular social group. Basically, his
Honour's reasoning was that the fortuitous circumstance of a common illness
which strikes all sectors of society was insufficient. Mr McIntyre relied heavily on the use of the
word "solely" in the passage in Black CJ's reasons for judgment in Morato at p.406. He submitted that in the present case one
starts with the acts done but then, in addition, should have regard to the view
of the persecuting authorities in China that the applicant would form part of a
group of evil organisers. In my view,
this does not take the matter any further.
The persecutor's view arises because of the criminal activities engaged
in. As I have noted above, there is no
evidence of any political connotation which might identify such organisers as
belonging to a recognisable or cognisable group in Chinese society. Mr McIntyre expressly eschewed any argument
with the Tribunal's assessment that any penalty which the applicant may face
because he has departed China illegally does not arise for a political
reason. Mr McIntyre referred briefly in
argument to the Tribunal's acceptance of the submission that Mr Su's penalty
may be increased due to his breach of family planning policies. I did not understand this as supplementing
the submission that the applicant formed part of a particular social group. If it did then, in my view, in view of the
decision in Minister for Immigration
& Ethnic Affairs v. Respondent A, the submission could not be
sustained.
In my opinion, organisers of illegal boat departures from China are not members of a particular social group within the meaning of the Convention.
Persecution By Reason of the Applicant's Nationality
This ground was expressed in the following terms:
"The Refugee Review Tribunal misdirected itself at law by failing to consider or failing to conclude that the Applicant had a well-founded fear of persecution by reason of his nationality, such persecution comprising punishment by way of detention of:
(i) persons who are Chinese nationals leaving China;
(ii) persons who are Chinese nationals assisting other Chinese nationals to leave China."
The applicant's submission is based upon persecution said to arise from the application of the above laws to him by reason of his Chinese nationality. I reject that submission for the same reasons which I gave in the matter of Su Wen Jian, published today.
Conclusions
For the above reasons the application will be dismissed with costs.
I certify that this and the preceding eleven
(11) pages are a true copy of the Reasons for
Judgment of Justice Carr.
Associate:
Date: 24 April, 1996
Counsel for the Applicant: Mr G M McIntyre
Solicitors for the Applicant: Dwyer Durack
Counsel for the Second Respondent: Mr P R Macliver
Solicitors for the Second Respondent: Australian Government
Solicitor
Date of Hearing: 25 March 1996
Date of Judgment: 24 April 1996
